Citation Nr: 0934600
Decision Date: 09/15/09 Archive Date: 09/23/09
DOCKET NO. 05-36 164 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas
THE ISSUES
1. Entitlement to an initial disability rating in excess of
70 percent for post-traumatic stress disorder (PTSD).
2. Entitlement to a total rating based on individual
unemployability due to the severity of service-connected
disability (TDIU).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The Veteran had active service from December 1966 to November
1968. His medals and badges include the Combat Infantryman
Badge.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 rating decision of the
VARO in Waco, Texas, that granted service connection for PTSD
and assigned a 50 percent disability rating, effective August
28, 2003, the date of receipt of a claim for benefits.
Review of the record reveals that in a rating decision dated
in July 2009, the aforementioned rating action was amended to
reflect a 70 percent rating for the Veteran's PTSD effective
from August 28, 2003.
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United
States Court of Appeals for Veterans Claims (Court)
determined a TDIU claim is part of an increased rating claim
when such claim is raised by the record. The Court held that
when evidence of unemployability is submitted at the same
time that the Veteran is appealing a rating assigned for a
disability, the claim for TDIU will be considered part and
parcel of the claim for benefits for the underlying
disability. In this case, the Veteran raised the issue of
entitlement to TDIU at the time that he was challenging the
disability rating for his PTSD. Therefore, the question
entitlement to TDIU is part and parcel of the claim.
FINDINGS OF FACT
1. The Veteran does not demonstrate total occupational and
social impairment due to his PTSD.
2. The Veteran's PTSD, rated 70 percent disabling, is his
only service-connected disability.
3. The service-connected PTSD reasonably precludes
substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for a disability evaluation in excess of
70 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103,
5107 (West 2002 & Sup. 2009); 38 C.F.R. §§ 4.3, 4.7, 4.130,
Diagnostic Code 9411 (2009).
2. The criteria for entitlement to a TDIU are reasonably
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duties to notify and assist claimants in substantiating
claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5107, 5126 (West 2002 & Supp. 2009); 23.102, 3.156(a), 3.159
and 3.326(a) (2009).
The intended effect of these regulations is to establish
clear guidelines consistent with the intent of Congress
regarding the timing and the scope of assistance VA will
provide to a claimant who files a substantially complete
application for VA benefits or who attempts to reopen a
previously denied claim.
In order to be consistent with 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b), VCAA notice must: (1) Inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; and (3) inform the claimant about the information
and evidence the claimant is expected to provide.
Based upon a substantial grant of the benefits sought by the
Veteran in this claim, the Board finds there is no need to
discuss in detail the various requirements of the VCAA and
whether they were adequately met or not. The Board notes
that a longitudinal review of the record shows that VA has
essentially met the duties with regard to the claim
adjudicated on the merits in its decision.
Increased Rating for PTSD
Disability ratings are based upon schedular requirements that
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155. Separate
rating codes identify the various disabilities.
38 C.F.R. Part 4. In determining the level of impairment,
the disability must be considered in the context of the
entire recorded history, including service treatment records.
38 C.F.R. § 4.2. An evaluation of the level of disability
present must also include consideration of the functional
impairment of the Veteran's ability to engage in ordinary
activities, including employment. 38 C.F.R. § 4.10.
Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7. In the process of
evaluating a mental disorder, VA is required to consider a
number of pertinent factors, such as the frequency, severity,
and duration of the Veteran's psychiatric symptoms. See
38 C.F.R. § 4.126.
Where the evidence contains factual findings showing a change
in the severity of symptoms during the course of the rating
period on appeal, the assignment of staged ratings is
permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity and duration of psychiatric
symptoms, the length of remissions, and the Veteran's
capacity for adjustments during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears the occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the time of the examination. When
evaluating the level of disability for a mental disorder, the
rating agency will consider the extent of such impairment,
but shall not assign an evaluation solely on the basis of
such impairment. 38 C.F.R. § 4.126.
The general rating formula for mental disorders at
38 C.F.R. § 4.130 provides the following ratings for
psychiatric disabilities:
Occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: Suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or work-like setting); inability to establish and
maintain effective relationships. This symptom picture
warrants the assignment of a 70 percent rating.
A total schedular rating of 100 percent is authorized when
there is total occupational and social impairment, due to
such symptoms as: Gross impairment of thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time and place; memory loss for
names of close relatives, own occupation, or own name.
Based on a review of the evidence, the Board finds that an
increase from the currently assigned 70 percent for the
rating period to a 100 percent evaluation is not warranted
for the Veteran's PTSD. Specifically, the evidence shows the
Veteran does not demonstrate total occupational and social
impairment due to his PTSD. At the time of recent
examination by VA, it was noted that the Veteran had stable
periods of employment over the years while he was working,
but he stated that he had to leave three of the jobs because
he would have been fired if he did not. The Veteran's wife
had been a major support for him until her death in 2004. It
was noted the Veteran had refused social outlets. He had a
basic distrust of other people and reference was made to
excessive anger, irritability, and depression. The examiner
opined that the PTSD had "severely impacted" the Veteran's
life due to his limited social interactions. The Veteran was
also accorded an examination in May 2009 and he was described
as neat, clean, and casually dressed. Reference was made to
past Global Assessment of Functioning scores and none of
these suggests total occupational and social impairment. The
GAF scores are consistent with the Veteran's treatment
records and are not out of line with the assignment of a
70 percent rating, but do not reflect such an incapacitating
disability picture that a 100 percent schedular rating should
be in order. Accordingly, the Board is in accord with the
RO's determination that a 70 percent rating is in order for
the Veteran's PTSD during the appeal period, an increase to a
100 percent rating is not warranted under Code 9411. The
claim with regard to this matter is denied.
TDIU
A total rating based on unemployability due to service-
connected disabilities may be granted if the service-
connected disabilities preclude the Veteran from obtaining or
maintaining substantially gainful employment consistent with
his education and occupational experience.
38 C.F.R. §§ 3.340, 3.341, 4.16.
If there is only one such disability, it must be rated at
60 percent or more, and if there are two or more
disabilities, there shall be at least one disability rated at
40 percent or more, and sufficient additional disability to
bring the combined rating to 70 percent.
38 C.F.R. § 4.16(a).
The essential inquiry is "whether the Veteran's service-
connected disabilities alone are of sufficient severity to
produce unemployability." Hatlestad v. Brown,
5 Vet. App. 524, 529 (1993). Neither nonservice-connected
disabilities nor advancing age may be considered in the
determination. 38 C.F.R. §§ 3.341, 4.19; VanHoose v. Brown,
4 Vet. App. 361, 363 (1993).
The Board observes that a claim for TDIU is, in essence, a
claim for an increased rating. Norris v. West,
12 Vet. App. 413, 420 (1999). A TDIU claim is an alternative
way to obtain a total disability rating without recourse to a
100 percent evaluation under the rating schedule.
The Veteran is in receipt of service connection for PTSD with
an evaluation of 70 percent. He is not service connected for
any of the disabilities. The Board has determined above that
the PTSD does not warrant a 100 percent schedular rating.
The Board now turns to whether the PTSD precludes the Veteran
from obtaining or maintaining substantially gainful
employment consistent with his education and occupational
experience.
At issue is whether the Veteran's PTSD alone precludes him
from obtaining and maintaining some form of substantially
gainful employment. The record reveals the Veteran has not
worked for several years because of what has been described
as his explosive temper and depression. It was noted this
has been aggravated by the loss of his wife in 2004. The
Veteran avoids social contact other than occasionally playing
dominos or going to group therapy. He was recently described
by a VA physician as having lost the "ability to work
effectively, to interact appropriately with family and
friends and to find sustained enjoyment in other activities."
The examiner stated that the effects of his various disorders
were interactive and "cannot be separated from PTSD." The
Veteran's prognosis was described as poor.
The reports of visits at a local Vet Center for the past
several years have been reviewed and they are essentially in
accord with a finding of unemployability.
An undated letter from a social worker at a local Vet Center
in Shreveport, Louisiana, referred to a letter from VA dated
in November 2008, and copies of individual and group progress
notes were enclosed. The individual stated the Veteran had
had an increase in his PTSD symptoms and these included
occupational and social impairment due to gross impairment of
thought processes and communication, danger of hurting
himself or others, memory loss, poor concentration, increased
arousal, reexperiencing of trauma, hypervigilance, severe
depression, anger outbursts, looseness of associations, and
difficulty retaining information. In view of the foregoing,
particularly with the resolution of all reasonable doubt in
the Veteran's favor, the Board is satisfied that the
Veteran's
service-connected PTSD renders him unable to obtain or
maintain substantially gainful employment. It is noteworthy
that the PTSD has been described as severely incapacitating.
Following a thorough review of the record, and resolving all
doubt in the Veteran's favor, the Board concludes that he is
unable to obtain and retain substantially gainful employment
due to the severity of his PTSD. Accordingly, entitlement to
a TDIU is warranted.
ORDER
A disability rating in excess of 70 percent for PTSD is
denied. To this extent, the appeal is denied.
A TDIU is granted, subject to the law and regulations
governing the payment of monetary awards.
____________________________________________
V. L JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs